Anonymous, Midrand
I know this is frequently asked question, but what is the process for filing for divorce. Second question, how is child custody determined?
Conviction Expert says:
A divorce process is instituted by way of a divorce summons. The Divorce summons can be obtained at the Regional Courts or a party can approach an attorney to assist with the process. A divorce summons is unique in that it must be served personally on the defendant by the sheriff.
A spouse who wishes to have their marriage dissolved must approach the High Court or the Regional Court of the Magistrate Court and have a summons issued. A court has a jurisdiction to hear a divorce matter:
If the parties are domiciled (live) in the area of the jurisdiction of the court as at the date of divorce.
If parties have been ordinarily resident in the area of jurisdiction and have been ordinarily resident in South Africa for a period of not less than a year (1 year) before the date of the institution of the divorce.
The spouse who starts the divorce proceedings is referred to as the Plaintiff and the other spouse the Defendant. A divorce summons:
Must state that there is no reasonable prospect of restoring the relationship.
Must also make provision for the division of the joint estate or the enforcement of the provisions of the ante nuptial contract subject to the parties’ matrimonial property regime that governs their marriage.
Must also set out what the arrangements with the children will be (with regards to the children born of the marriage or who were adopted by the parties).
The summons must also state that the defendant has 10 days (in the case where he or she is residing in the same area as the plaintiff) or 20 days in the case where the parties reside in different provinces, to answer to the summons.
The Court Registrar will open a file, stamp the documents and allocate a case number. The documents will then be handed back to the plaintiff. The plaintiff will deliver two sets of these documents to the sheriff in the area where the Defendant works or reside. The sheriff will then serve the documents personally on the defendant and issue a return of service proving that the documents were served.
Where there are children involved, the Office of the Family Advocate must be informed.
After a period of 10 or 20 days has elapsed, the plaintiff may enrol the divorce in the court roll. The defendant must answer the summons by way of a notice of intention to defend the matter. Once that is done, he or she must also file a plea within a specific period. A plea is a statement where the defendant will be responding to the allegations in the summons. After a plea is filed the plaintiff can also reply to the plea or file a notice of set down. The matter will then be enrolled for trial.
Types of Divorce
There are two types of divorces:
Opposed- where there are no issues and parties are in agreement;
Unopposed- where parties do not agree.
Default Divorce
A default divorce is a form of uncontested divorce.
A court will grant a divorce by default if summons have been served on the spouse and he or she does not respond within the allotted time period, the plaintiff can approach the court to have the matter set down for trial.
It is however advisable to contact your spouse to find out why they are not defending the matter as they may come back at a later date to set the divorce aside on the ground that there was good excuse for missing the deadline.
Important Facts
You can institute divorce on your own by approaching your local Regional Court of the Magistrate Court which will provide the necessary forms and give guidance on how to conclude your divorce.
It is however, advisable to seek the assistance of an attorney with family law experience or to involve a qualified mediator in cases where there are substantial assets, retirement annuities or pension funds as well as children. The attorney will assist with drafting a parenting plan as well as a settlement agreement.
